State v. James

2017 Ohio 5747

Opinion

[Cite as State v. James, 2017-Ohio-5747.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 105019

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

DARRELL L. JAMES

DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-16-605993-C

BEFORE: Stewart, J., E.A. Gallagher, P.J., and Boyle, J.

RELEASED AND JOURNALIZED: July 6, 2017 ATTORNEY FOR APPELLANT

Mary Elaine Hall 245 Leader Building 526 Superior Avenue, East Cleveland, OH 44114

ATTORNEYS FOR APPELLEE

Michael C. O’Malley Cuyahoga County Prosecutor

Brandon Piteo Assistant County Prosecutor Justice Center, 9th Floor 1200 Ontario Street Cleveland, OH 44113 MELODY J. STEWART, J.:

{¶1} Defendant-appellant Darrell L. James pleaded guilty to attempted carrying a

concealed weapon, a fifth-degree felony. Noting that the offense caused James to violate the

terms of probation in another case,1 the court stated: “You have to do six months, and you will

do nine months because you were already on probation. That’s why you’re getting a little more,

okay. Because I gave you a chance and you threw it away.” James argues on appeal that the

court ordered the additional three months as a sentence for the probation violation in the prior

case and ordered that sentence to be served consecutive to a six-month sentence for the

fifth-degree felony count in this case. He maintains that an order of consecutive service violated

R.C. 2929.41(A), which requires, with inapplicable exceptions, a jail term for a misdemeanor to

be served concurrently with a prison term or sentence of imprisonment for felony.

{¶2} We reject James’s argument because the court did not impose a three-month term

for a misdemeanor probation violation consecutively to a six-month prison term. Read in

context, the court imposed a single, definite sentence for the offense of attempted carrying a

concealed weapon. The court’s statement that “you have to do six months” was a reference to

the six-month minimum sentence for a fifth-degree felony. See R.C. 2929.14(A)(5). The court

decided not to impose the six-month minimum prison term, telling James that it “gave you a

chance and you threw it away.” This was a reference to James having violated the terms of his

probation in a different case before the same trial judge. Hence the court’s statement that “you

will do nine months because you were already on probation[.]” Our conclusion is further

supported by the terms of the court’s sentencing entry where it stated: “The Court imposes a

1 James pleaded guilty to a first-degree misdemeanor count of attempted drug trafficking in Cuyahoga C.P. No. CR-13-573183. He received a jail term of 180 days, with execution of sentence suspended, and was placed on probation for three years. prison sentence at the Lorain Correctional Institution of 9 month(s).” The court used the word

“sentence” to indicate a single sentence. Tellingly, the sentencing entry makes no reference to

James’s prior case, nor does the word “consecutive” appear at all in that context.

{¶3} For the same reasons, we reject James’s argument that defense counsel was

ineffective because she failed to file a sentencing memorandum that preemptively raised the issue

of whether the court could order consecutive-service sentences for misdemeanor and felony

offenses. Having found that the court imposed a definite sentence for a single offense and did

not order consecutive service of multiple prison terms, James has not shown any prejudice from

defense counsel’s failure to file a sentencing memorandum. Strickland v. Washington, 466 U.S.

668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

{¶4} Judgment affirmed.

It is ordered that appellee recover of appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the common pleas

court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.

______________________________________________ MELODY J. STEWART, JUDGE

EILEEN A. GALLAGHER, P.J., and MARY J. BOYLE, J., CONCUR